ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann.
§§61-1-55, et seq. (Supp. 1994) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1994) for
a contested case hearing. The Petitioner, Beverly A. Knaup seeks an on-premise beer and wine
permit and a club sale and consumption license as a nonprofit organization for the Oakridge Cafe. A
hearing was held on December 7, 1995, at the Administrative Law Judge Division, 1205 Pendleton
Street, Columbia, South Carolina.
The permit requested by the Petitioner is granted.
FINDINGS OF FACT
1. The Petitioner seeks an on-premise beer and wine permit and a club
sale and consumption license as a nonprofit organization for D&T of
North Charleston d/b/a the Oakridge Cafe at 5060 Dorchester Road,
North Charleston, South Carolina. The Petitioned incorporated D&T
of North Charleston as a nonprofit organization under South Carolina
law on December 5, 1994.
2. Notice of the time, date, place and subject matter of the hearing was
given to the Petitioner, the Protestants, and the South Carolina
Department of Revenue.
3. The qualifications set forth in S. C. Code Ann. § 61-9-320 and S. C.
Ann § 61-5-50 (1994) concerning the residency and age of the
Petitioner are properly established. Furthermore, the Petitioner has
not had a permit or license revoked within the last two years and
notice of the application was lawfully posted both at the location and
in a newspaper of general circulation.
4. The Petitioner is of sufficient moral character to receive the permit
and license.
5. The proposed location is not close to any church, school or
playground.
6. The Protestant objects to the Petitioner receiving a permit and license
because there are already 48 establishments that sell alcoholic
beverages within 4.6 miles of the location. The Protestant also objects
to the proposed location because establishments that sell alcoholic
beverages interfere with the peaceful environment of the
neighborhood and create the potential of drunk drivers upon the
streets.
7. This location has been permitted or licensed to sell beer, wine or
alcohol for approximately 10 years. There is no evidence of any
change in circumstances reflecting that this location is less suitable
than it has been in the past.
8. The proposed location is suitable for an on-premise beer and wine
permit and a club sale and consumption license as a nonprofit
organization.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude as a matter of law the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 1994) grants jurisdiction to the
Administrative Law Judge Division to hear contested cases under the
Administrative Procedures Act.
2. S.C. Code Ann. § 61-1-55 (Supp. 1994) grants to the Administrative
Law Judge Division the powers, duties and responsibilities as hearing
officer in protested and contested matters governing alcoholic
beverages, beer and wine.
3. S.C. Code Ann. § 61-9-320 (Supp. 1994) sets forth the requirements
for the issuance of an on-premise beer and wine permit.
4. S.C. Code Ann. § 61-5-50 (Supp. 1994) sets forth the requirements
for the issuance of a club sale and consumption license as a nonprofit
organization. Section 61-5-50 specifically provides that principals of
the organization must possess good moral character. Furthermore,
under S.C. Code Ann. 61-5-20 (3) (Supp. 1994) the non-profit
organization is not open to the general public and only the members
and guests of the club may consume alcoholic beverages upon the
premises.
5. As trier of fact, an Administrative Law Judge is authorized to
determine the fitness or suitability of the proposed location of an
applicant for a permit or license to sell alcohol, beer or wine using
broad but not unbridled discretion. Byers v. S. C. ABC Commission,
316 S.E. 2d 705 (S.C. App. 1984).
6. The determination of suitability of a location is not necessarily a
function of geography. It involves an infinite variety of considerations
related to the nature and operation of the proposed business and its
impact on the community within which it is located. Kearney v. Allen,
287 S.C. 324, 338 S.E. 2d 335 (1985).
7. Without sufficient evidence of an adverse impact on the community,
the application must not be denied if the statutory criteria are satisfied.
The fact that protestant objects to the issuance of the permits is not a
sufficient reason by itself to deny the application. See 45 Am. Jur. 2d
Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating
Liquors § 119 (1981).
8. In considering the suitability of a location, it is relevant to consider the
previous history of the location and to determine whether the
testimony in opposition to the granting of a permit is based on
opinions, generalities and conclusions or whether the case is
supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301,
(1972); Taylor v. Lewis, et al. , 261 S.C. 168, 198 S.E.2d 801
(1973).
9. A permit should be granted to a location that has been recently
permitted absent some showing that the location is now less suitable
than in the past. Taylor v. Lewis, supra.
10. I conclude that the Petitioner meets all the statutory requirements for
holding a beer and wine permit and a club sale and consumption
license as a nonprofit organization at the proposed location.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application of Beverly A. Knaup for an on-premise beer and wine permit
and sale and consumption license as a nonprofit organization be granted upon the Petitioner's payment
of the required fee and cost to the South Carolina Department of Revenue and Taxation.
AND IT IS SO ORDERED.
______________________________________
Judge Ralph King Anderson, III
Administrative Law Judge
January 5, 1996
Columbia, South Carolina |